The Daily Beast Podcast - Why Ending Cash Bail Won’t Increase Crime

Episode Date: December 19, 2021

Pulitzer Prize-winning journalist Tony Messenger, and author of “Profit and Punishment: How America Criminalizes the Poor in the Name of Justice,” joins this bonus episode of TNA to tell Molly Jong-Fast what people get wrong about cash bail, the only two things the Koch Bros. and the left agree on and why Dems are scaredy cats when it comes to criminal justice reforms. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hello and welcome to another bonus episode of the new abnormal. And we thank you so much for joining us. Tony Messenger is a Pulitzer Prize winning journalist at the St. Louis Post and Dispatch. And today we're going to talk to him about his book, Profit and Punishment, how America criminalizes the poor in the name of justice. Welcome to the new abnormal, Tony. Thank you for having me on, Molly. It's good to be here. Criminal justice reform.

The right is now very passionate about it. I'm not sure if you saw it yesterday. But Marjorie Taylor Green, the dumbest member of Congress, Louis Gomer, and various others in that crew of fuckery, had a big press conference about how upset they are at the treatment of the January 6th insurrectionists. You know, it's fascinating that all of a sudden they care about people in jail having their civil rights trampled upon. And I'm not sure the civil rights of the insurrectionists are actually being. trampled upon, I do welcome people caring about folks in jail because that's a big part of what I write about, even though I don't trust that they actually care. You know, those folks are looking for a headline. And it is unfortunate because there are actual conservatives who do care

about the issues I write about in my book. Yeah. And the Koch brothers, I mean, this has become a sort of mainstreaming thing in a certain way. Talk to me about why cash bail is bad. So cash bail is bad for a variety of reasons. First of all, just because it's being applied by judges in an unconstitutional fashion. The only purpose of cash bail is supposed to be to require somebody to show up in court or in egregious situations where you're talking about a potentially violent criminal protects society from them by keeping them locked up. But what really happens with cash bail in most cases,

is it holds poor people in jail who don't have enough money to pay for their freedom. And where that really gets bad is in the case of people who end up pleading guilty to minor crimes just in order to get out of jail. And then they find out that in many cases, they're going to get a bill for their jail time because that guilty plea allows the county to now charge them for the time that they held them in jail pre-trial. and then they're going to get all these other fines and fees heaped upon them. And then they're going to be supervised by, in many cases, a private for-profit probation company whose incentive is to get repeat customers by sending those folks back to jail.

So that really nice prosecutor that came to visit you in jail and said, hey, you've been here 30 days. Let's get you out of here. Let's go ahead and just plead guilty to time served, then you'll sign on this dotted line and you can go back to your job if you haven't already been fired and your kids of social services haven't already taken them and hopefully you won't be homeless because you've been kicked out of your apartment while I've held you here on $10,000 cash bail. Things got really dark, really fast here. Yeah, we're going to take care of you. And of course, you're poor and you sign on that dotted line

and then you get out and you realize, holy cow, I owe the county $5,000 now. not only do I owe the county $5,000, but the judge is threatening me with more jail time if I don't pay. And there's this private company that I have to pay fees to, and they just called me and said, I have to go take a drug test. And if I don't have money for the drug test, or I happen to pee dirty, now I'm going to go back to jail. All of that starts because of cash bail, because it puts poor people behind the eight ball in a way that those of us who have some level of means, some level of wealth, never have to face that reality when we are involved in whatever ways we happen to be involved with the criminal justice system. It seems to me that a lot of the problems we see in policing come from this profit motive.

They do. So I write in the prologue about Philando Castile because a lot of police brutality. cases start with a traffic stop. And the reality of those traffic stops is, particularly in Philando's case, it was not the first traffic stop. He had been stopped about 40 times in his youth by police for various traffic offenses. And he owed at the time that he was killed about $6,000 in fines and fees. And if you go back and you look at the record, there's been some great reporting in in Minnesota and some other folks that obviously I relied on for my book, you go back and you look at that really good reporting. You find out that this was not a guy that was driving a hundred miles an hour through a school zone. He was getting pulled over because he didn't have a light over his

license plate or because a police officer a thousand yards away thought he saw a crack in a windshield or or up, there's an air freshener hanging from the, you know, rearview mirror. We're going to have to pull you over for that. And so what happens for black people and brown people in particular in urban areas is that a lot of municipalities depend on their traffic revenue for making their budgets. And there are circumstances. I write about a small municipality in St. Louis County in the book where the mayor was actually sending emails to the police chief, threatening to fire police officers if they didn't start writing more tickets. And so that's why this problem, this reality of wealth extraction that our criminal justice system in many ways is built upon

can't be separated from race, can't be separated from police brutality. All of these issues end up playing into each other, particularly if you are a poor person. Right. I mean, that is the thing. And we've seen that in numerous police brutality cases where the police are stopping these people to make their numbers. I was the editorial page editor at the St. Louis Post Dispatch when Michael Brown was killed on August 9th, 2014. And the first editorial I wrote about that situation on the ground, I still remember being at the office writing about this as the first protests were beginning, was about racial profiling in Missouri. And the horrendous numbers year after year that come out in Missouri about how significant of a gap there is, particularly black people, but also other people of color, getting stopped completely out of whack

with both their population and getting searched completely out of whack with the statistics on what is actually found. More drugs and paraphernalia and that sort of thing are actually found in Missouri on searches of white drivers, and yet blacks and Hispanics are searched at a significantly higher rate. And so I was so glad, you know, looking back in history, I'm so glad when I go back and I look at those editorials about Ferguson, that that first one hit on that racial profiling, because that's the nature of what happened to Michael Brown, to Philando Castile, to so many of the young black names that so many of us know now and have been paying attention to over the years, they got stopped for something relatively minor, wasn't the first.

time and it wasn't the sort of thing that people who look like me get stopped for very often. It's such an unbelievable cause and effect, right? I mean, and we just don't talk about enough. So how do we fix this? So there's a few things. I retweeted a tweet this morning from the Fines and Fees Justice Center and they were talking about how Nevada this year, their legislature, decriminalized some minor misdemeanors that before were putting people in jail. And then they also did something that lots of states are starting to do. Illinois also did it in this last year. They repealed a bill that allows the state to suspend a driver's license without a hearing for somebody who is behind on their fines and fees. So think about how ridiculous that is. And in most states, the state can still

does this and does and does do it regularly. You fall behind on paying this court debt that has, in most cases, nothing to do with your offense, but is just a variety of charges that the legislature has decided to use the court system for as a backdoor tax. You fall behind paying that bill because you're poor. Now the state takes your driver's license and you have a choice. Well, do I break the law to drive to my job that is getting me the money so that I can pay my court? court debt, or do I not go to my job because I can't get there now, or, you know, maybe I've got to take 10 buses across town to get there or whatever. The effect of taking away somebody's driver's license because they can't afford to pay court debt is just, it's the exact opposite of what the

state should be trying to do. We want to help you come up with your money. So the fact that states are making this small step, and I think it's a small step, but it's an important one, to recognize that we shouldn't be penalizing poor people just because they can't pay their court debt. That's a good first step. The other step that's taken place in a couple of states, two states, Missouri and Idaho, have had, and these are conservative states, they've had their Supreme Court's rule unanimously that the practice that was prevalent in those states of putting poor people back in jail because they couldn't afford to pay court debt is illegal, that they can't do that anymore. And so those

little bits of progress are being made. But the real step that has to take place is we have to reconfigure the criminal justice system so that it is not being used for wealth extraction. And that means cash bail reform. It means funding public defenders. It means completely getting rid of all of these fines and fees that are being used to raise money for other purposes. It means judges, and judges could do this right now with absolutely no legislation. It means judges deciding that everybody who comes before me, I'm going to defend their civil rights. And I'm going to make sure they have an ability to pay hearing before I impose cash bail. I'm going to make sure they have an ability to pay hearing before I oppose fines and fees. And if they can't afford it, because they're a

poor person, I'm just going to wipe the fines and fees away. I'm going to do what the legislature refuses to do. Judges can do that in almost every jurisdiction in this country right now if they just decided to stand up and fulfill their judicial oaths. I know why. But, but I want our listeners to know why ending cash bail won't increase crime. So the Arnold Foundation did a study in 2013, and they focused on low-risk defendants in jail in Kentucky. And what they found is that people who were held on cash bail for as little as 24 hours were more likely to commit further crimes than those similarly situated people who were sent home without cash bail. So the use of cash bail in those circumstances actually makes us less safe. The numbers were significantly worse if you were in jail for 30 days. If you were in jail for 30 days according to that study,

and this is the most comprehensive study that exists on this topic, if you were in jail for 30 days because you couldn't afford your cash bail, you were 70% more likely to commit further crimes than similarly situated people who were not held in jail on cash bail. Again, pre-trial before you've been convicted while you're still an innocent person. This study has been around for a while and the advocates within the industry talk about it all the time and the folks who push back on cash bail reform. They just want to talk about that one guy, that one guy who's a bad dude, who got out on cash bail and ended up shooting somebody or committing some domestic violence or doing something bad. And unfortunately, some of my colleagues in the media, we blow those things up.

And that gets the big headline instead of the 99 people who did exactly what they were supposed to do and went home to their families and kept their jobs and thus didn't have incentives to continue to commit crimes. The news bias, right, getting news as opposed to the, you know, the un-newsy aspect of people just doing what they're supposed to do. Well, and part of it, and I've, you know, I mean, I'm somebody who's learned a lot as a journalist in the last few years working more specifically in this criminal justice realm. I get that a lot of journalists, and I have been one of them, get that news release from the

police department, get that news release from the, from the prosecutor, and, you know, just make the assumption, oh, wow, this is bad. Boy, this is, you know, this is a big deal. Boy, they shouldn't let that guy out. And, and, and, and, and, and, and, and, and, and, and, and, and, that, that, that, that, somebody who was let out on bail committed another crime, But the fact is, most people who are held in bail pre-trial, if you look at at Rikers in New York, or if you look at the workhouse in the city justice center in St. Louis, where I live, there are all sorts of people being held in those jails on cash bail right now. Some of them are there for failure to pay charges, meaning that they're being held primarily in a debtor's prison because they're poor.

And many of them are not violent. Keeping them in jail is not making us safer. In fact, it's doing the opposite. Democrats have had a very tough time with this topic since Mike Dukakis and that ad. Do you agree? I do. And in fact, you know, it was interesting. So in my book, I write about a piece of legislation that passed in Missouri in 2019. It was sponsored by a Republican named Bruce DeGroote and a Democrat named Mark Ellabrecht. And the bill said the same thing that ultimately the Missouri Supreme Court was ruling at the same time in a couple of cases, that if somebody owes them money for jail debt, you can't threaten them with more jail time because they can't pay. You can send it to civil collection fine, but you can't put them back in jail. And when I was talking to Representative DeGrode and Representative Elabracht about this, it was the Democrat, Representative Elabracht, who had a harder time.

going as far as I think the bill should have gone. Frankly, they discussed and thought about getting rid of the charge for jail, which absolutely should happen. Nobody should be charged for their time in jail. That's one of the reforms that should absolutely happen. But it was the Democrat who didn't want to go as far as the Republican, and it's because of this sort of longstanding political reality that we have where if a Democrat looks soft on crime, he's just going to get his ass kicked and beat upon in both primaries and the general

election by the Republicans. That's what's so weird about the current debate of criminal justice reform is in some ways it's easier for Republicans when they find Jesus in this movement and realize that we're putting far too many people in jail in this country and we're putting far too many of them in jail for the wrong reasons. Sometimes it's easier for Republicans because they feel like they're protected from the charge that they're going to be soft on crime. Right. I mean, it seems clear to me that that's what's going on is that Democrats have really been scared away from some of this criminal justice stuff. And weirdly, Republicans are, I mean, it is one of those oddly, I mean, the one thing that Trump did was he was a little bit interested in this, which was sort of

shocking to me. I mean, obviously he didn't do it, but he's, you know, seemed a little interested. It's funny. You describe it similarly to how I did in the book. It's important that Trump did it when he signed the First Step Act. I don't think if you actually asked him today what the First Step Act is and why he did it. He could give you a complete answer, but he did it. And the fact that he did it gave permission to people on the right to say, I can be in favor of criminal justice reform. I've got a chapter in the book called the ACLU meets the Koch brothers. And it talks about how in Missouri, those two organizations have sat together at the same table at community forums talking about the decriminalization of the justice system and trying to get away from this idea of wealth extraction. And both sides

get it. And I think they come to it in different ways, but it's important that, you know, some of them get it. It's funny because there are two things that both the Coke Brewery, brothers and, you know, the left are agreed on and it's criminal justice reform and ending forever wars. It's the only two things and they're actually really huge things, but because of how crazy everything's gotten in America, it doesn't get focused on. Well, and that's where getting to actual reform in today's political environment becomes so difficult. I talk about my experience walking into an Americans for Prosperity meeting in a conservative rural county in St. Louis region and how weird it was for me to walk into a room where a bunch of people were wearing maga hats.

And these are folks who refer to the post dispatches, the post disgrace, and, you know, accuse me of being a pinko-law, you know, liberal and, you know, all sorts of other things. And it was really weird walking into that room because I get a physical negative reaction when I see a MAGA hat. But they did understand the issue. They were a good audience. And it was because people in their network had told them, hey, this is an important issue. We care about this. And here's why we care about it, because we're spending far too much money in the state budget on corrections. And we can't afford it. And so we've got to do something else about it. This is one way we can save money. So, you know, to me, that's not the most important element of the issue. But if it brings

people to the table to have a discussion about fixing our criminal justice system, then that's a good thing. So I did see that there is some good legislation, though, coming down from my state senator that represents my district, Julia Salazar. Could you tell us about that legislation? Yes. Senator Salazar has a bill called the End Predatory Fees Act in the New York Senate. It very much should be something that should spread like wildfire all across the country. It gets rid of most of the fees that now cause people to end up being held in jail on a failure to pay charge. And it is something that there's also some congressional legislation that is similar. And Senator Salazar, I talked to her about this legislation a couple of weeks ago.

She really gets it. She understands that you can't continue to put all of the problems. that New York is focusing on related to Rikers. They all start with this problem. They start with this idea that people are being held on cash bail, and a lot of the people that are being held on cash bail are there because they were brought back to jail because they couldn't afford to pay the fines and fees. If you just get rid of all the fines and fees, you change the system immediately because then people who do commit crimes, big crimes, small crimes, whatever, people who do commit crimes, and they serve their time for their crimes, then they can just be done, and they can go on with their

lives, and they can spend significantly less time behind bars paying a financial penalty just to raise money for various state government services because the legislators are afraid to actually ever vote for a tax increase, God forbid. And so this End Predatory Fees Act is one of these pieces of legislation that every state legislature in the country ought to be passing. And there is a similar piece of legislation in Congress that would incentivize the states to pass legislation like Senator Salazar. So I really hope that gets through the New York legislature and, you know, becomes a model for the rest of the country. Thank you so much for joining us. This is great.

Thanks for having me. I really appreciate being on the podcast. On that note, we'll wrap this episode of the new abnormal from The Daily Beast. In future episodes, we'll be talking to smart folks from The Daily Beast and beyond from media, culture, politics, and science. We'll help us understand what's happening to our country and the world. We hope you'll subscribe to us on your favorite podcast app and share the show on social media. Thanks so much for listening, and we'll see you again on the next episode. Want more great listens? Check out our comedy podcast, The Last Laugh, and our star-studded The Daily Beast podcast at the Daily Beast.

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